The inclusion and direct reference to impacts on section 35 rights is an important step. However, the overreliance on discretionary clauses such as “taking into account” or “consider any adverse effects” does not fully protect section 35 rights under the Constitution. None of these statements are aligned with current case law, nor do they meet the requirements of the constitutional duties outlined in Sparrow or Haida. There is no requirement or duty under the act to comply with the test in Sparrow for minimal impairment or justification for proven rights, or the test under Haida to accommodate impacts on asserted rights. The minister and Governor in Council must uphold and protect section 35 rights in decision-making under the act and when making regulations or orders under the act. Section 35 rights are constitutionally protected and regulatory regimes to truly reconcile our societies into Canadian society in a positive and lasting manner....
The Supreme Court of Canada advised against uninstructed regulatory regimes that can infringe on section 35 rights and advised governments to provide legal guidance to increase aboriginal rights and protections.
In terms of indigenous knowledge systems, first nations strongly support the inclusion of traditional knowledge of the indigenous people of Canada in the proposed acts. However, the current wording of the provisions across all three acts is problematic. To address this, we recommend the use of the term “indigenous knowledge systems” in order to capture the nature of indigenous knowledge and make clear the distinction between traditional use and indigenous knowledge, and improve the confidentiality and intellectual property protection provisions to align with article 31 of UNDRIP to ensure that indigenous knowledge that is disclosed will only be used on that regulatory process and shall not knowingly be, or permitted to be, disclosed without written consent, and improve existing confidentiality provisions to ensure that first nations knowledge will be treated respectfully and appropriately.
Last, in terms of joint decision-making—